About Me

Buford C. Terrell
Controlled substances laws and their consequences have been the center of my professional life for over fifteen years. I host a public interest television program in Houston, “Drugs, Crime, and Politics” , produced by the Drug Policy forum of Texas, and have done so for most of its ten-year history. Before my retirement, I taught a seminar, “Controlled Substances Law” for many years at South Texas College of Law.
In this blog I intend to explore the features and consequences of those laws, especially the unintended consequences, and look at the need for, and possibility of, changing them. Don’t expect a lot of breaking news or current events, although there will be some. My approach will be more historical and theoretical. I hope to get a lot of criticism – good, bad, and otherwise – and to start some good, heated discussions.

Thursday, March 7, 2013

Slaying the Gerrymander

Slaying
the Gerrymander

[This
essay is only indirectly related to drug law reform. But over the past decade I
have become convinced that this topic is the most critical and crucial
political problem our nation faces.That
fact alone is sufficient reason to address it here, but it also highlights one
of the most intransigent obstacles to improving drug law.]

In
1800 the states carried out their constitutional duty to reapportion their
congressional districts to conform to the decennial census.As governor of Massachusetts, Elbridge Gerry
was in control of his state’s redistricting. (Gerry was a signer of the
Declaration of Independence, a dissenting delegate to the Constitutional
Convention, congressman, governor of Massachusetts, and Vice-president.)One of the resulting districts, one that
Gerry intended to represent when he stepped down as governor, meandered its way
through the middle of the state from the far northern border to the southern
one (at that time, Massachusetts still included the territory that would be
split off to form Maine).An editorial
cartoonist for a Boston paper thought the map of the district looked like the
silhouette of a salamander and in his cartoon labeled it the
“Gerrymander”.The name – and the
problem – is still with the country.

The
redistricting provision is one of the few mistakes the Founders made.They did not foresee the rise of political
parties and their influence on the process.Consequently no checks or limits are placed on a state’s redistricting
powers.Gerry and his contemporaries in
other states quickly realized the meaning of this lack of oversight and
leveraged their parties’ majority status in the legislatures into advantages in
future elections by creating either districts in which they had overwhelming
majorities or districts in which their opponents’ majorities were diluted.

As
time passed, those leveraged majorities were increased until districts were
either irredeemably Republican or Democratic.Today, only a minority of congressional districts are even considered
contestable.Today career politicians
have life-time jobs and elections are merely ceremonies in which politicians
select their voters.

A
look at any state’s districting map will show the distorting effect of
gerrymandering.Texas can serve as an
example, simply because I am most familiar with it.One ghetto-ized Democratic district in
Houston looks like the letter “Q” with a slice out of one side.Another district is a dog-bone over 150 miles
long, with urban Democratic blobs in Austin and Houston outweighed by a rural
Republican shank connecting them.Even
at the county level, one Harris County precinct is made of two non-contiguous
areas.The original Gerrymander looks
almost rational in comparison.

The
time has come to slay the gerrymander.Just as war is too important to leave to the generals, voting is too
important to be left to the politicians. Redistricting can, and must, be removed from
political control.California has shown
the way by instituting a non-partisan redistricting commission operating
outside of legislative control.

But
California neglected an opportunity to provide guidelines and limits on its new
commission.Both modern computer and
data technologies and advances in mathematical theory have provided tools that
Gerry with his hand-drawn maps and pen-and-ink could not have imagined. (NERD
WARNING: the next few sentences will wade into the depths of wonkdom.) First, computers now allow census data to be
collected and easily manipulated down to the level of a city block.Billions of trial groupings can now be
examined in a few seconds.Second,
topology, a branch of mathematics, has developed a set of mapping theories that
provide methods for dividing a populated surface (like a state with people
strewn irregularly across it) in accordance with set criteria.This capability means that if one can define
a fair division of voters into districts, these methods will provide a
verifiable means of defining those districts.

The
criteria for fair redistricting under these standards are straightforward:

·All
districts must be within 0.5 per cent of the same population.This criterion is about the same as that applied
today.The exact size of the variation
could be changed.

·All districts
must comply with federal election laws.This provision would apply only if the redistricting is by state law.

·The
combined length of the district borders must be the least practicable.This criterion is critical and is the result
of applying mathematical mapping theorems.The most efficient division of a surface is that with the minimum border
lengths.If the population across the
state were evenly distributed, then the efficient map would look like a
honeycomb, paved with hexagons.

Three optional requirements would be
useful:

·To
the extent practical, districting should follow boundaries of political
subdivisions, beginning with the most local (precinct, ward, etc.) and then
progressing through larger ones in order.

·In
each successive redistricting, at least 10 per cent of a district’s border line
must change.

·The
redistricting commission must prepare three maps satisfying these criteria and
the legislature must choose one of those three.

The real problem with
redistricting reform is finding a path to get there.Two paths are possible, but both are very
steep, if not impossible.

One approach is
through state action, moving one state at a time following the lead of
California.However, for most states
this path leads through the legislature and that legislature is probably
dominated by career politicians who have a vested interest in preserving their
safe districts.The other states can use
initiative or referendum procedures to by-pass the legislature and impose
popular will.If enough of these states
reform, they may create pressure on the others to conform.

The other path is
federal and it has two branches.The
first is by constitutional amendment and the second may be through congressional
action.Either is unlikely.

The constitution
provides only two methods for amendment: an amendment may be initiated either
by a two-thirds vote of each house of congress or by action by the legislatures
of three-quarters.No action by popular initiative
is possible.Neither of these methods
seems likely for the reasons discussed above.

Congress may have the
authority to tackle gerrymandering directly.The Constitution gives congress the power to insure a republican form of
government in every state, the Fourteenth Amendment extends equal protection to
all citizens, and the Fifteenth charges congress with protection of the right
to vote for black Americans.When read
together, these three provisions support a strong argument that congress must
supervise the redistricting process to ensure equal – and equally effective –
access to the ballot box.

Gerrymandered
districting makes a farce of elective government; and serious in any area means
reclaiming the right to a strong ballot that is weighed equally.Now is the time to get together and slay the
Gerrymander.